West Bengal

South 24 Parganas

CC/405/2014

Sri Mukul Kanti Biswas, S/O Late Nagarbasi Biswas. - Complainant(s)

Versus

1. M.S. Samrat Land Housing Corporation, A partnership firm. - Opp.Party(s)

19 Feb 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _405_ OF ___2015_

 

DATE OF FILING : 9.9..2015                      DATE OF PASSING JUDGEMENT:  23.05.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu

                                                                             

COMPLAINANT             :        1. Dilipendu Banerjee          

2. Dibyendu Banerjee, both sons of late Dwijendrajit Banerjee of P-112, Regent Estate, P.S. Jadavpur, Kolkata – 92.

 

-VERSUS  -

 

O.P/O.Ps                            :   Biswajit Mallicmk,s/o Sri Suresh Chandra Mallick, Prop. M/s Tara Maa Builders, of 2/154, Sree Colony, P.S. Jadavpur, Kolkata – 92.

 

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President

The application under section 12 of the C.P Act, 1986 has been filed by the complainants against the O.P on the ground that  complainants entered into and executed a development agreement with the O.P on 17.5.2009 for development and construction of a residential building within the KMC Ward no. 96 and it was agreed that the complainant will get 40% share in the said building including the super built up area and fully finished and completed flat units comprised therein-which were agreed to be handed over by the O.P to the complainants  with khas possession after completion of construction as per their respective allocation and in accordance with and in lieu of their 40% share in the said project. The complainants also executed a General Power of Attorney  on 17.6.2009 in fovaur of the O.P which was registered being no.00365  for the year 2009 at the office  of the District Sub Registrar I at Alipore. It was further claimed that in terms of the agreement complainants will get entire second and third floor of G+4 storied building and the entire first floor of the G+3 storied building  which should be allotted and delivered towards owner’s allocation but the O.P handed over and delivered possession of the first floor of G+3 storied building and third floor of G+4 storied building only to the complainants and thereby remaining portion being second floor of G+4 storied building was delivered deliberately and willfully to one Salil Chatterjee   by the O.P  and who is in present occupation of the said flat unit, thus depriving the complainants from their lawful right to occupy and own the said portion of the G+4 storied building being the entire 2^nd floor flat unit and violating the said agreement dated 17.5.2009. It has stated that the unauthorized occupant Salil Chatterjee  has already taken possession of the said flat of G+4 storied building being flat no.2A at P-112, Regent Estate, Kolkata -92  measuring about 1382 sq.ft absolutely unlawfully  without consent and permission of the complainants. Thus the O.P acted deficiency of service and unfair trade practice. It has further alleged that complainants will get Rs.20lakhs from the O.P being the value of the property/land measuring about 6 cattah 13 chittak and 12 sq.ft. But the O.P only paid to the tune of Rs.17,93,180/- and last payment was Rs.5 lacs each to the complainants through account payee cheque. Hence, this complaint with a direction to hand over the khas possession of the second floor flat being unit no.2A, measuring 1382 sq.ft and balance amount of Rs.2,06,820/- only in cash and/or by pay order at a time with current banking rate of interest and also pray for compensation to the tune of Rs.15,80,000/- and legal expenses Rs.2 lacs.

Inspite of serving summon the O.P did not appear . Hence, the case is taken up for argument in exparte.

Point for determination in this case is whether there is any deficiency in service on the part of the O.Ps or not .

                                                Decision with reasons

We have perused the agreement in between the parties ,wherefrom we find that inspite of making agreement for allocation to the complainants the entire second and third floor as per sanctioned plan of the KMC of G+4 storied building, the O.P only partly complied the said agreement and did not deliver entire second floor of G+4 storied building ,that is why, complainants compelled to file this case. We find that the O.P acted unfair trade practice and deficiency in service by not providing the agreed flat situated in the second floor of G+4 storied building as claimed in the schedule of the application measuring 1382 sa.ft . The O.P is duty bound to deliver khas possession of the said second floor flat to the complainants , that is why, complainants have been able to prove his case in exparte which is unchallenged testimony. So, we have nothing to disbelieve the same.

Hence,

                                                Ordered

That the application under section 12 of the C.P Act, 1986 is allowed in exparte against the O.P with cost of Rs.10,000/-

The O.P is hereby directed to hand over khas vacant possession of the second floor flat of premises no. P-112, Regent Estate, Kolkata – 92 measuring 1382 sq.ft to the complainant within one month from the date of this order, failing which, complainants are at liberty to execute the order through this Forum.

The O.P is further directed to pay compensation to the tune of Rs.1 lakh within that period, failing which, interest will carry @9% p.a till realization, from that date.

The other prayer of the complainants is rejected since the same is not mentioned in the agreement.

If the O.P failed to deliver peaceful vacant possession of the said flat ,cost and compensation, the complainants are at liberty to execute the order through this Forum.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

                                                Member                                                                       President

Dictated and corrected by me

                               

 

                        President

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

 

                                                Ordered

That the application under section 12 of the C.P Act, 1986 is allowed in exparte against the O.P with cost of Rs.10,000/-

The O.P is hereby directed to hand over khas vacant possession of the second floor flat of premises no. P-112, Regent Estate, Kolkata – 92 measuring 1382 sq.ft to the complainant within one month from the date of this order, failing which, complainants are at liberty to execute the order through this Forum.

The O.P is further directed to pay compensation to the tune of Rs.1 lakh within that period, failing which, interest will carry @9% p.a till realization, from that date.

The other prayer of the complainants is rejected since the same is not mentioned in the agreement.

If the O.P failed to deliver peaceful vacant possession of the said flat ,cost and compensation, the complainants are at liberty to execute the order through this Forum.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

                              Xe                                                 Member                                                                       President